On Wednesday morning, the Court spent seventy-six minutes – well more than the one hour originally allotted – deliberating the constitutionality of Section 5 of the Voting Rights Act of 1965, which requires states and local governments with a history of discrimination to get permission from the federal government before making any changes, no matter how small, to their voting procedures. (I previewed the issues in the case last week.) By the time the Justices left the bench that day, it seemed almost certain that five of them would vote to put a halt to Section 5 as it currently operates.

That comment was the first in a series from the Court’s four more liberal Justices, who may well have believed that their colleagues were poised to strike down all of Section 5 and were hoping to stave off such a decision on the ground that even if it may not be needed in all of the jurisdictions that must comply with it, it is still needed in Shelby County. Therefore, the thinking goes, Shelby County has no right to challenge the law as it applies to all of those jurisdictions. Justice Elena Kagan agreed with Sotomayor, telling Rein that, under any formula that Congress could come up with to cover jurisdictions that continued to discriminate, Alabama would still be covered. But this line of reasoning did not necessarily find much support among the other Justices: although Justice Anthony Kennedy, who is often regarded as the Court’s “swing vote” in high-profile cases, asked one question that some have interpreted as showing some sympathy for this position, the Chief Justice later emphasized that “Shelby County is just challenging the formula as it applies to” it.

Another theme to which the Justices repeatedly returned at oral argument boiled down to whether Section 5 had done its job and was no longer needed now that the kinds of problems that Congress had originally used to identify the jurisdictions that should be covered by Section 5’s preclearance requirement – for example, poor records in voter registration and voter turn-out for African Americans when compared with whites – have largely been eliminated. Moreover, who gets to make that decision: Congress or the courts?

The Court’s more conservative Justices saw things through a very different lens. They focused on voting problems in states and local governments that are not required to comply with Section 5’s preclearance requirement, and the perception of injustice that results when jurisdictions with arguably better records are still required to comply. So when Solicitor General Don Verrilli began his oral argument by emphasizing that when Congress extended Section 5 in 2006, it had before it “a very substantial record . . . of continuing need” for the preclearance provision, the Chief Justice peppered him with a series of questions about voter registration and voter turn-out statistics indicating that Mississippi – which must comply with the preclearance requirement – has a better record than Massachusetts, which is not required to do so. And Justice Alito asked skeptically whether changes in polling places – which the United States cited as an example of a modern, potentially discriminatory practice for which Section 5 preapproval should be required – were actually “a bigger problem in Virginia [which is covered by the law] than in Tennessee [which is not], or it’s a bigger problem in Arizona [covered] than Nevada [not covered], or in the Bronx [covered] as opposed to Brooklyn [not covered].”

In what was certainly the most memorable part of the argument, Justice Scalia strongly suggested that perhaps the Court needed to step in and make this determination because Congress was incapable of doing so objectively. He recounted how the initial enactment and re-authorization of Section 5 had faced “double-digit” opposition, which slowly faded away until the 2006 vote to reauthorize the provision was unanimous in the Senate and nearly unanimous in the House of Representatives. He posited that this lack of opposition wasn’t “attributable to the fact that it is so much clearer now that we needed this” but instead was “very likely attributable . . . to a phenomenon that is called perpetuation of racial entitlement. . . . [W]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. . . . And I am fairly confident it will be reenacted in perpetuity unless . . . a court can say it does not comport with the Constitution. . . . [I]t’s a concern that this is not the kind of a question you can leave to Congress.”

When it was his turn at the lectern, however, Solicitor General Verrilli disagreed. Section 2 is not a good substitute for Section 5, he explained, because Section 5 puts the burden on the state or local government to show that the proposed change won’t be discriminatory, and the change can’t go into effect until it is approved. By contrast, under Section 2, the federal government or individuals have to sue to stop the change, which may take a while, and they have to show that it has a discriminatory purpose. He offered the example of changes in a polling place, which he noted are “the most frequent type of” change submitted for preapproval and “can be a source of great mischief.”

Although Justice Thomas did not ask any questions at Wednesday’s oral argument, he made clear four years ago in the Northwest Austin case that he would have voted to strike down Section 5. And the questions and comments from the Chief Justice, Justice Scalia, and Justice Alito strongly hinted that they too would join Justice Thomas on this go-round. On the other end of the ideological spectrum, the comments by the Court’s four more liberal Justices all pointed toward a vote to keep Section 5 intact. That leaves, as it so often does, the vote of Justice Kennedy. And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.

Will the Court ultimately do so? And if so, what will the contours of its decision be? The Justices have already voted on those questions, but the rest of us won’t know until the Court releases its opinion – which probably won’t happen until late June. When it does, we’ll be here to cover it in Plain English.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.